There is an ongoing battle over the proper size and role of the federal government, especially as it relates to conflicts with state governments over legislative authority. Conservatives believe that state and local governments should be empowered to handle local issues such as healthcare, education, immigration, and many other social and economic laws.

Original Constitutional Roles

There is little question that the current role of the federal government far exceeds anything ever imagined by the founders and has clearly taken over many roles originally designated to individual states.

The founding fathers, through the U.S. Constitution, sought to limit the possibility of a strong centralized government and in fact gave the federal government a very limited list of responsibilities. Simplified, the founders thought that the federal government should handle issues that it would be difficult or unreasonable for states to handle such as the maintenance of military and defense operations, negotiating with foreign countries, creating currency, and regulating commerce with foreign countries. Ideally, individual states would then handle all most matters that they reasonably could. The founders even went further in the U.S. Constitution’s Bill of Rights to prevent the federal government from grabbing too much power.

Benefits of Stronger State Governments

One of the clear benefits of a weaker federal government and stronger state governments is that the needs of each individual state are more easily managed. Alaska, Iowa, Rhode Island, and Florida are all very different states with very different needs, populations, and values.

A law that may make sense in New York might make little sense in Alabama. For example: Some states have determined it is necessary to prohibit the use of fireworks due to an environment that is highly susceptible to wild fires. Other states have no such problems and have laws that allow fireworks. It would not be valuable for the federal government to make one standardized law for all states prohibiting fireworks when only a handful of states need such a law in place. State control also empowers states to make tough decisions for their own well-being rather than hope that the federal government will see the states’ problem as a priority.

A strong state government also empowers citizens in two ways. First, state governments are far more responsive to the needs of the residents of their state. If important issues are not addressed, then voters can hold elections and vote in people they feel are better suited to handle the problems. However, if an issue is only important to one state and the federal government has authority over that issue, then they have little influence to get the change they seek as they are but a small part of a larger electorate. Second, empowered state governments also allow individuals to choose the state that best fit their own personal values. Families and individuals are able to choose states that either have no or low income taxes, or states with higher ones. They can opt for states with weak or strong guns laws, with restrictions on marriage or without them, and so on. Some people may prefer to live in a state that offers a wide range of government programs and services, others may not. But just as the free market allows individuals to pick and choose products or services they like, so to can they choose a state that best fits their lifestyle. An over-reaching federal government limits this option.

James Madison wrote that our system of federalism provides “a double security…to the rights of the people.” In other words, the 50 states serve as shields for individual rights that the federal government fails to protect. States can harness these tools to protect important rights. The intro will set the stage for the day’s theme, building on the Founders’ concept of federalism, tying it to Reagan’s ascendency and the framework of the Reagan Revolution, and touching on the concepts of states’ powers.

Hon. Scott Pruitt, Attorney General, Oklahoma

Preserving Freedom: Federal vs. State Power10:30 am - 12:00 noon

Sometimes federalism is invoked because we believe the best way to preserve freedom is to devolve to the local level. With the federal government’s reach extending into more facets of daily life like education policy, labor & employment policies, and healthcare, calls for state and local governments to stand against Washington are increasing. Yet at times, local government can serve as an even greater restraint on individual rights. From regulations governing entrepreneurship and the sharing economy, the minimum wage, asset forfeiture, and policing, state and local government at times may intrude on individual freedom even more than the federal government. State initiatives on “right to try” (now law in 24 states) and marijuana regulation also lead to federalism questions, putting conservatives and libertarians at odds. How do we strike the proper federalism balance? How should principles of federalism inform the federal government’s response to state initiatives?

Adam Freedman, Author, A Less Perfect Union and The Naked Constitution

The state Senate’s Education Committee approved legislation that would make education savings accounts nearly universal in Arizona. The panel voted 5-2 for the measure after hearing from parents who support the program.

ESAs are available in Arizona, but only to children meeting very specific criteria — only 2,400 students make use of them statewide.

The bill now moves on to the Senate Finance Committee for consideration.

PHOENIX — The future of photo enforcement of traffic laws in Arizona could depend on what voters decide in November, if not at the state level, then in each community.

On a 3-2 vote last week, the state Senate Committee on Public Safety, Military and Technology voted to put a proposal on the ballot that would outlaw the use of cameras to enforce speeding and red light violations.

But Sen. Steve Smith, R-Maricopa, conceded he probably does not have the votes to get SCR 1010 out of the full Senate. So he agreed to alter it to leave the issue up to local voters.

What that means, however, is that a community could not erect new cameras unless there was first a public vote. And unless voters specifically agree to allow the cameras, those in place would have to come down.

What might happen likely depends on local sentiment. But if a public vote last year in Tucson is any indication, the cameras will go away.

Wednesday's vote came over the objections of police chiefs who testified that photo enforcement works.

Citing the state’s “sovereign authority”, members of the Arizona, Missouri, and Tennessee legislatures are attempting to prohibit state judges from enforcing U.S. Supreme Court and/or federal courts decision. An Arizona House committee is set to vote on two such proposals this week.

Arizona

Under HB 2024 as introduced U.S. Supreme Court decisions could only be deemed valid in Arizona if they were “affirmed” by Congress and signed into law.

1-274. Sovereign authority; United States supreme court opinions

Pursuant to the sovereign authority of this state and article II, section 3, Constitution of Arizona, this state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer or cooperate with an opinion of the supreme court of the United States that is not in pursuance of the constitution of the United States and that has not been affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.

Similar provisions would also ban enforcement or acknowledgment of presidential executive orders (1-272) and federal agency policies (1-273).

HB 2201 would operate in a similar manner. The statute defines any cooperation with a “ruling issued by a court of the United States” as “commandeering” state judges and allows it only if the ruling has been “affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.”

Missouri

HJR 62 is constitutional amendment directed broadly to any “federal law.” The state legislature could send to the ballot, or the general public could via referendum, any “federal law” for a vote as to its constitutionality. If approved by voters, the “federal law” would be valid. If not, “the courts of this state shall be stripped of jurisdiction to enforce such a particular federal law…”

HJR 62 has been filed in the House Government Oversight and Accountability Committee.

Tennessee

HB 1828 and the identical SB 1790 both repeat many of the same provisions of the Arizona bills, but with one difference. Where the Arizona bills required Congress “affirm” U.S. Supreme Court and/or federal court decisions before state courts can enforce them, the Tennessee version requires the Tennessee General Assembly consent to the federal court decisions first.

This state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer, or cooperate with the implementation, regulation, or enforcement of any opinion of the United States supreme court unless such has been first expressly implemented by the general assembly by law as the public policy of the state.

HB 1828 is in the House State Government Committee. SB 1790 is the Senate Judiciary Committee.

Tennessee Passes Resolution Calling on the Feds to Give Western Land Back to the States

NASHVILLE, Tenn. (Feb 8, 2016) – A resolution recently passed by the Tennessee legislature and signed by Gov. Bill Haslam calls on the feds to give back the land in the Western part of the country back to the states.

Introduced by state Rep. Andy Holt, House Joint Resolution 92 (HJR92) “expresses support for the federal transfer of public lands to the western states and urges Congress to coordinate the transfer of title to the western states.”

It passed the House last year by a vote of 64-25. In January, the Senate passed it 26-2. And Gov. Haslam signed it on Jan. 26, 2016.

The resolution reads, in part:

The Constitution contains no expression of intent to authorize the federal government to indefinitely exercise control over western public lands beyond the duty to manage the lands pending the disposal of the lands to create new states, and therefore the lands should be returned to the western states….limiting the ability of western states to access and utilize the public lands’ natural resources within their borders is having a negative impact upon the economy of those western states and therefore the economy of the entire United States.

Along with calling on other states to pressure the feds to give up the land they control in their jurisdictions, the bill also states that “if any public land in the western states is sold to private owners, 95% of the net proceeds be paid to the Bureau of the Public Debt to pay down the federal debt.”

Although non-binding, the resolution allows Tennessee to voice its desire for the federal government to relinquish its vast ownership of land in the western part of the nation. Today, the federal government assumes the power to own and regulate about 1 million square miles of land within the United States. Giving this land back to the states, especially those where the feds ownership comprises most of the state itself, would not only return control back to the states but it would also end the contentious feuds recently seen between ranchers and federal agencies that have already resulted in bloodshed.

While this resolution is non-binding, this is exactly what John Dickinson, the “Penman of the American Revolution” recommended states to pass. We must remember that small things grow by great concord.

Sheri Few, Karen Lamoreaux, Karen Bracken, Alice Linahan, Tamara Scott, Theresa Hubbard, Jan Lenox, Deb Yoa, and Sandy Torosian, names that are familiar to many of our readers, are the leadership behind a group called USPIE which stands for U.S. Parents Involved in Education launched a new campaign to abolish the U.S. Department of Education.

They held a press conference in Des Moines, IA and I’m ashamed to admit I missed the press conference because I was busy with Iowa Caucus coverage.

United States Parents Involved in Education (USPIE) is a nonprofit, nonpartisan, nationwide coalition of state leaders focused on restoring local control of education by eradicating federal intrusion.

State leaders from around the country who are fed up with being ignored when it comes to education policy have joined forces to abolish the US Education Department and put an end to manipulation of state officials with federal funds and policy mandates. USPIE will bring the issue of unconstitutional federal intrusion in education to the forefront of public discourse and endeavor to inform Americans about the need to get the federal government out of the education business, and return education to its proper local roots.

“We have come to the conclusion that it is time for us to quit spinning our wheels in our states, and not gaining the kind of achievements that we’re looking for,” Sheri Few, the co-director of the group who served as founder and president of South Carolina Parents Involved in Education (SCPIE). “We’ve decided that it’s time to put an end to the U.S. Department of Education and end all federal mandates on education. That is why today we’re unveiling our campaign ‘Stop Fed Ed,’ and we’re asking you to join the movement.”

JACKSON, Miss. (Feb. 8, 2016) – A bill introduced in the Mississippi Senate would take the first step toward prohibiting state cooperation with the enforcement of future federal gun control measures, a move that would effectively nullify them in practice in the Magnolia State.Sen. Michael Watson (R-Pascagoula) introduced Senate Bill 2234 (SB2234) on Feb. 1. The legislation titled the Federal Firearm, Magazine and Register Ban Enforcement Act would prohibit state cooperation with enforcement future federal gun laws that violate the Second Amendment or the Mississippi state constitution.

“An official, agent or employee of the state or a political subdivision of the state shall not knowingly and willfully order enforcement of a federal executive order, agency order, law, statute, rule or regulation that is issued, enacted or promulgated on or after the effective date of this act as to a personal firearm, a firearm accessory or ammunition if the federal executive order, agency order, law, statute, rule or regulation is contrary to the provisions of Article 3, Section 12, of the Mississippi Constitution of 1890 or the Second Amendment of the Constitution of the United States.”

State employees or agents willfully enforcing such federal gun control laws would face criminal penalties.

Both bills would set the stage to end cooperation with state enforcement of future federal gun laws, but it would require additional actions to effectuate. The withdrawal of state cooperation depends on a finding of constitutionality – the federal action must violate either the state or U.S. Constitution. The bill does not create any mechanism to make that determination. Before ending cooperation with a given federal act, some process must be put in place to evaluate its constitutionality.

The Mississippi legislature could make SB2234 immediately effective by removing the requirement for a determination of constitutionality. Instead, simply prohibit cooperation with all future federal laws, acts, rules or regulations relating to firearms. This approach removes the need for a determination of constitutionality and would have immediate effect on any new gun control coming from Washington D.C.

But even without such a bold move, the legislation sets a good foundation to build on, and could represent an important strategic step forward. As Thomas Jefferson wrote to James Madison about the passage of the Kentucky Resolutions of 1798, it’s important to be strategic:

I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in the future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.

JACKSON, Miss. (Feb. 9, 2016) – A Mississippi bill would set the stage to nullify some presidential executive orders and Department of Justice directives to state and local law enforcement agencies.

Sen. Chris McDaniel (R-Ellisville) introduced Senate Bill 2084 (SB2084) on Jan. 26. The legislation would prohibit state agencies, political subdivisions and their employees from utilizing personnel or resources to “enforce, administer or cooperate with an executive order issued by the President of the United States that has not been affirmed by a vote of Congress and signed into law as prescribed by the United States Constitution.”

It would also establish the same prohibition on state cooperation with “a policy directive issued by the United States Department of Justice to law enforcement agencies in this state that has not been affirmed by a vote of Congress and signed into law as prescribed by the United States Constitution.”

It remains unclear how the state would determine if an individual DOJ directive or presidential executive order would be subject to noncooperation under the proposed law. The legislation would likely require further action to implement if passed into law.

SB2084 follows the blueprint “Father of the Constitution,” created for resisting federal power. In Federalist 46 James Madison outlined several steps that states can take to effectively stop “an unwarrantable measure,” or “even a warrantable measure” of the federal government. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.

Because the federal government depends on state assistance for implementation and enforcement of almost all of its edicts and programs, barring state cooperation of executive orders and DOJ directives would likely make them nearly impossible to enact in Mississippi from a practical standpoint.

LEGAL BASIS

SB2084 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program The anti-commandeering doctrine rests primarily on four Supreme Court cases cases dating back to 1842. Printz v. US serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

PHOENIX, Ariz. (Feb. 9, 2016) – A bill that would take a step toward nullifying indefinite detention under the National Defense Authorization Act (NDAA) of 2012, or any other federal law which might claim to authorize the same, passed an important Senate committee today.

Introduced by State Sen. Judy Burges, Senate Bill 1437 (SB1437) would ban the state of Arizona from enforcing sections 1021 and 1022 of the 2012 National Defense Authorization Act. These sections purport to give authority to the federal government to indefinitely detain anyone, anywhere – without charge or trial. (learn more here) This bill also covers indefinite detention without due process authorized under “any similar law or authority enacted or claimed by Congress or the President.”

Any person attempting to indefinitely detain a person in violation of the law would be “subject to prosecution pursuant to title 13 or any other applicable law.”

SB1437 passed the Senate Federalism, Mandates and Fiscal Responsibility Committee by a vote of 4-2. It now moves on to the senate Rules Committee where it will require approval by majority vote before the full Senate can consider it.

A similar bill stalled in the Rules Committee last year.

If passed into law, Arizona would become the fifth state to take steps to nullify indefinite detention, joining Alaska, California, Michigan and Virginia. Those states have passed similar legislation in the last three years, but far more limited in scope. An additional three states have legislation based on the Tenth Amendment Center’s model legislation, the Liberty Preservation Act.

“Justice Antonin Scalia said we would be kidding ourselves if we didn’t think the Supreme Court would approve another WWII, Japanese-American style, internment,” founder of People Against the NDAA Dan Johnson said last year. “Arizona has a chance to join several states to head this off and avoid repeating a dark part of American history.”

All of these states are following James Madison’s blueprint for stopping federal overreach. In Federalist 46, heargued that a “refusal to comply with officers of the Union” along with other actions at the state and local level would create a situation where the federal government would have an almost impossible time enforcing their acts. When several states join together and do the same, Madison said it would “present obstructions which the federal government would hardly be willing to encounter.”

PHOENIX, Ariz. (Feb 10, 2016) – Two bills that would “legalize the Constitution” by defining gold and silver as legal tender and encouraging their use as currency passed an important Senate committee today.

Sen. David C. Farnsworth and Rep. Doug Coleman, along with seven cosponsors, introduced Senate Bill 1141 (SB1141) on Jan. 19. The legislation defines constitutional legal tender to establish gold and silver coin for use in the marketplace as currency. It reads, in part, “Legal tender and specie are money and are not subject to regulation as property other than money.”

Also introduced by Farnsworth along with Rep. John Allen and eight cosponsors, Senate Bill 1423 (SB1423), would remove the state capital gains tax (as 30 other states have done) on gold and silver. It reads, in part, “notwithstanding any other law, the exchange of gold or silver coins does not give rise to liability for any type of tax. Gold and silver coins are money and are not subject to taxation except as may be required by article IX, section 2, subsection 13, constitution of Arizona.”

Both bills passed by a 4-3 vote in the Senate Financial Institutions Committee today.

“Legal tender” means a medium of exchange, including coins with precious metal content, that is authorized by the United States constitution or Congress for the payment of debts, public charges, taxes and dues.

“Specie” means gold or silver coin, bar or round.

Working together, the legislation would also allow Arizonans to deduct the amount of any net capital gain included in federal adjusted gross income derived from the exchange of one kind of legal tender for another kind of legal tender or specie from their state income tax, In other words, individuals buying gold or silver, or utilizing gold and silver in a transaction, would no longer be subject to state taxes on the exchange.

Passage of both bills into law would mark an important step towards currency competition. If sound money gains a foothold in the marketplace against Federal Reserve notes, the people would be able to choose the time-tested stability of gold and silver over the central bank’s rapidly-depreciating paper currency. The freedom of choice expanded by SB1141 and SB1423 would allow Arizona residents to secure the purchasing power of their money.

PHOENIX, Ariz. (Feb. 10, 2016) – A bill that would set the stage for the state to refuse cooperation with federal acts passed out of a Senate committee today.

Introduced by Rep. Bob Thorpe and a coalition of 12 sponsors and cosponsors, House Bill 2201 (HB2201) would prohibit state participation or cooperation with any action of the United States government that constitutes “commandeering.” The bill defines “action” as “an executive order issued by the president of the United States; a rule, regulation or policy directive issued by an agency of the United States; a ruling issued by a court of the United States; a law or other measure enacted by the Congress of the United States.

The bill defines commandeering as, “any action that either is not in pursuance of the Constitution of the United States and that has not been affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States, or exceeds the powers of the Congress of United States enumerated in the Constitution of the United States.”

The proposed law closely mirrors a state constitutional amendment passed in 2014. The amendment explicitly affirmed the state’s right to “exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are consistent with the Constitution.”

HB2201 passed the Federalism and States’ Rights Committee by a 5-1 vote today.

“The legislation could take some important steps forward, but it’s not without its flaws in its current state,” Tenth Amendment Center executive director Michael Boldin said. “But some easy technical changes to the bill in the next committee or on the House floor would give the bill serious immediate impact.”

Boldin explained that the bill incorrectly defines “commandeering.” Under the long-established anti-commandeering doctrine supported by four major Supreme Court opinions from 1842 to 2012, the states cannot be required to use personnel or other resources to enforce or effectuate a federal act or regulatory program.

“In short, the feds ‘commandeer’ the state when they require it to handle enforcement of federal laws, something that states get involved in voluntarily all-too-often,” Boldin said.

The bill takes a different approach by changing the legal definition of “commandeering.” It defines the it as:

“COMMANDEERING” INCLUDES ANY ACTION THAT EITHER:

(a) IS NOT IN PURSUANCE OF THE CONSTITUTION OF THE UNITED STATES AND THAT HAS NOT BEEN AFFIRMED BY A VOTE OF THE CONGRESS OF THE UNITED STATES AND SIGNED INTO LAW AS PRESCRIBED BY THE CONSTITUTION OF THE UNITED STATES.

(b) EXCEEDS THE POWERS OF THE CONGRESS OF UNITED STATES ENUMERATED IN THE CONSTITUTION OF THE UNITED STATES.

“This is a confusing approach, at best,” Boldin said. “But an amendment to the bill, giving a clear and legally-correct definition of commandeering would give the legislation the impact it should have.”

An example of commandeering would be the Department of Homeland Security telling state and local police to enforce federal immigration laws instead of the DHS doing the job itself.

“You don’t see federal agents writing speeding tickets on Arizona highways because those are state laws that the state handles,” Boldin said. “Turn the tables around and you’ll have clear understanding of anti-commandeering. It’s basically just telling the feds to enforce their own laws themselves. There’s nothing requiring states to pitch in and help.”

Amending HB2201 with the proper definition of commandeering would make it likely to have immediate effect and would set the stage to end cooperation with numerous federal enforcement efforts. As written, the legislation would require some mechanism to determine which acts are “not in pursuance of the constitution” or exceed the powers of Congress.

EFFECTIVE

HB2201 follows the blueprint the “Father of the Constitution,” created for resisting federal power. In Federalist 46 James Madison outlined several steps that states can take to effectively stop “an unwarrantable measure” of the federal government, or “even a warrantable measure” that happens to be unpopular. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing the necessary cooperation, states can nullify in effect many federal actions.

LEGAL BASIS

With or without a determination of constitutionality, HB2201 both rest on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program The anti-commandeering doctrine rests primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

WHAT’S NEXT

HB2201 now moves on to the House Rules Committee for further consideration.

A bill that would prevent federal officials from enforcing the indefinite detention provisions found in sections 1021 and 1022 of the National Defense Authorization Act of 2012 within Arizona has passed a key committee of the Arizona State Senate.

On Tuesday, Senate Bill 1437 passed the Senate Federalism, Mandates and Fiscal Responsibility Committee with 4 voting in favor and 2 voting against. The bill would prohibit federal officials from indefinitely detaining civilian residents in the state. It would also prohibit extrajudicial executions of any person or resident in Arizona.

Bill sponsor Sen. Judy Burges (R-Sun City West), who said that the NDAA indefinite detention provisions are a threat to civil liberties, told The Arizona Daily Star, “We’re trying to push back against federal overreach.”